(based on ruling 83063 of the Eretz Hemdah-Gazit Rabbinical Courts)
Case: The defendant (=def) hired the plaintiff (=pl) to do renovations for a fee of 400,000 NIS. Most of the project was completed, and def paid pl 95% of the fee. Due to disagreements between the sides, pl did not complete the job. Pl is suing for the 23,400 NIS not paid and for additional payment he deems to deserve based on extra work. Def countersued for flaws in the work.
Ruling: [This final installment deals with one remaining, localized question.]
Damage pl did to the building’s parking area: Pl put, with the permission of def and his six neighbors, a roll-off dumpster to remove construction debris in a corner of the parking area, and it seriously damaged the asphalt. The building paid 42,000 NIS to replace the asphalt of the whole parking lot; def paid half of that amount. Although def agrees that the asphalt was not in good shape, the damage necessitated replacing it in the short term, and def was made to pay a larger part than others. Therefore, he demands 15,000 NIS from pl.
The mishna (Bava Kama 98b) rules that if a worker broke stones when undoing a wall, he must pay unless the stones fell from one side when he was handling the other side. The Meiri explains the partial exemption as being because the damage happened by an oness (not due to any shortcoming of his). The Yam Shel Shlomo says that while it was not beyond his control, he is exempt because he did what was expected of him. Our case should depend on whose opinion we accept, because pl could have known his action would cause damage, but, on the other hand, he did what the homeowners approved. Arguably, the Yam Shel Shlomo would agree to obligate because the damage was done relatively directly by the heavy equipment.
Another reason (other than the laws of damages) to obligate is that a paid worker is obligated like a shomer sachar (paid watchman) (Shulchan Aruch, Choshen Mishpat 306:4). On the other hand, a shomer sachar’s obligations do not apply to things attached to the ground (Bava Metzia 56a). Tosafot (ad loc.) posits that the exemption for things attached to the ground is even for cases of negligence, whereas the Rambam (Sechirut 2:3) rules that a negligent shomer is like one who damages. The more accepted opinion is that this too is exempted (see Shulchan Aruch, CM 301:1 with commentaries). However, a worker who damages can be obligated through the rules of damages even for things connected to the ground. Therefore, we obligate pl, who, at the very least, could have warned the homeowners of the likelihood of damage.
However, def does not deserve the full amount he sued for. First, pl presented def with an estimate of 30,000 NIS for the job. Also, since asphalt lasts 25-30 years, the remaining value of the parking area’s old pavement was only 6,000 NIS. Since the evidence indicates that only one sixth of the parking area was damaged, pl should only be obligated in 1,000 NIS.
Pl wants to be exempt because, in discussing def’s counterclaims against pl and in the original suit, def did not mention a claim about the asphalt. Def’s explanation, that he wanted to get pl to work and therefore left side claims for later, is reasonable, so there is no proof that def relinquished rights.
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